International experience in building the legal mechanism for prevention and combat against human trafficking: lessons for Vietnam

51Nghiên cứu trao đổi ● Research-Exchange of opinion
INTERNATIONAL EXPERIENCE IN BUILDING 
THE LEGAL MECHANISM FOR PREVENTION AND 
COMBAT AGAINST HUMAN TRAFFICKING: 
LESSONS FOR VIETNAM
Do Thi Ly, Quynh*
Date received the article: 5/9/2019
Date received the review results: 5/3/2020
Date published the article: 25/3/2020
Abstract: At present, human traffi cking is becoming very complicated. This is not only 
a matter of every nation, every region, but also an international problem. This requires each 
country to formulate eff ective and consistent legal mechanisms in line with international 
regulations in the fi ght against human traffi cking crimes. The study of experiences of countries, 
including countries closely related to the situation of human traffi cking in Vietnam such as 
China, the Philippines and Thailand, is a reference channel for Vietnam to complete and 
improve the legal mechanism to prevent and combat human traffi cking in the coming time.
Keywords: human traffi cking, legal mechanism, national and international problem, Vietnam.
* Peoples Security Academy
Protocol on preventing, suppressing 
and punishing human traffi cking, 
especially women and children (TIP 
Protocol), complements the United 
Nations Convention against Transnational 
Organized Crime (The TOC) is the most 
progressive and politically signifi cant 
document and is an important international 
legal basis for strengthening international 
cooperation in the fi ght against human 
traffi cking as well as in protecting victims. 
This Decree was adopted by the United 
Nations on November 15, 2000 and serves 
as a basis for countries to refl ect and perfect 
the law on the prevention and combat of 
human traffi cking. However, each country 
has established separate legal mechanisms 
to prevent and combat human traffi cking. 
Therefore, the study of legal mechanisms 
of countries, especially China, Thailand, 
and the Philippines, is one of the channels 
to apply to improve the legal mechanism 
to prevent and combat human traffi cking 
in Vietnam.
1. The legal mechanism for the 
prevention and combat of human 
traffi cking in a number of countries in 
the world
1.1. In China
Article 240 of the Criminal Code 
of the People’s Republic of China 
Tạp chí Khoa học - Trường Đại học Mở Hà Nội 65 (3/2020) 51-57
52 Nghiên cứu trao đổi ● Research-Exchange of opinion
1997 stipulates penalties for each act 
of traffi cking in women and children, 
including the highest penalty up to the 
death penalty and confi scation of all 
property of criminal objects.
However, at present, China only 
considers sexual exploitation, forced 
labor and organ harvesting as human 
traffi cking without considering the act of 
handing over people and receiving money 
through marriage as human traffi cking. 
While China’s main need is to buy and sell 
brides to address the shortage of women 
in the country. This is also a diffi culty in 
coordinating as well as preventing human 
traffi cking from Vietnam.
In addition, as for the Chinese 
law, Article 241 of the Penal Code, also 
stipulates that the act of buying women 
and children for sale is subject to a 3-year 
penalty, labor re-education or probation. 
But if they do not prevent them from 
returning to their former residence 
according to their wishes, without abusing 
children who are traffi cked, or preventing 
their escape eff orts, they may not be 
prosecuted for criminal liability. 
Article 242 provides for acts of 
using violence or intimidation to prevent 
state offi cials from delivering women and 
children to be sold.
Article 416 stipulates the 
responsibility of employees in state 
agencies to rescue women and children. 
Failure to deliver the rescue will result 
in up to 5 years of imprisonment or re-
education. If the rescue is prevented, the 
off ender will be sentenced to between 
2 and 7 years of imprisonment or re-
education.
Thus, it is clear that although the 
legal provisions on traffi cking in women 
and children are quite heavy with the 
highest penalty of death penalty, this 
provision is still fundamentally diff erent 
from the protocol in both acts, method and 
purpose.
In addition, Chinese law is fl awed 
when men are not mentioned as victims 
and China, despite being a destination for 
traffi cking crimes and complicated human 
traffi cking acts in the country, China still 
has no anti-human traffi cking law as 
other countries in the region and Chinese 
managers often develop plans and plans 
to prevent and combat human traffi cking 
through each stage and now is the period 
2013-2020.
Minors under Chinese law are under 
18 years’ old
1.2. In Thailand
Thailand has enacted a Law on 
Prevention and Combat of Human 
Traffi cking since 2008, which includes 
57 articles which outline the concept of 
human traffi cking, the level of penalties 
specifi c to each act, victim assistance and 
national cooperation as well as establishing 
an Anti-Traffi cking Committee and 
a human traffi cking fund. Thailand’s 
defi nition of human traffi cking is similar 
to the Protocol’s defi nition of recruiting, 
transporting, harboring, traffi cking, 
transferring the same methods as coercion, 
kidnapping, deceiving, using force and 
emphasizing exploitation. Regarding 
punishment, Thai law stipulates penalties 
based on the age of the victim as well as 
the object of the off ense. As follows:
53Nghiên cứu trao đổi ● Research-Exchange of opinion
Trading people who are imprisoned 
from 4 to 10 years, fi ned from 56 million 
to 140 million dongs (converted into 
Vietnam dongs);
Victims from 15 - 18 years old: 
imprisonment from 6 to 12 years, fi ned 
from 84 million to 168 million VND;
Victims under 15: imprisonment 
from 8 to 15 years, fi ned from 112 million 
to 210 million VND.
In particular, if the organized crime, 
the members must face penalties more 
than 1/2 times the penalty prescribed by 
law.
Bringing victi ... confi scate all of the collected 
property.
Thailand has set up two committees 
on this issue, the National Committee on 
Human Traffi cking and the Committee 
for Coordinating and Monitoring Human 
Traffi cking Prevention with basic tasks such 
as: National Committee anti-traffi cking 
experts are responsible for advising the 
government on the enactment of laws, 
organizational structure, and international 
cooperation. The coordination and 
supervision committee are responsible 
for overseeing the implementation of 
legal policies, overseeing the organization 
and implementation of tasks, promoting 
awareness raising and training staff 
to meet requirements. The National 
Commission on Human Traffi cking is 
chaired by the Prime Minister and other 
ministers are members. The coordination 
and supervision committee are chaired by 
the Deputy Prime Minister (the president) 
and the vice president is the Minister of 
Human Security and Social Development, 
operating 1300 hotline 24/7.
In addition, Thailand also established 
a human traffi cking fund from confi scation 
of property due to traffi cking off enses and 
the support of societies in order to support 
victims of human traffi cking.
1.3. In Philippine
In September 30, 2003, anti-
human traffi cking law - law No. 9208 
came into being marking the Philippines’ 
determination to ensure human rights, 
prevention and combat human traffi cking. 
This law sets out the defi nition of human 
traffi cking in Article 3 - a defi nition quite 
similar to the defi nition of the Protocol 
with three signs of behavior, modes and 
purposes. Defi ne specifi c behaviors from 
54 Nghiên cứu trao đổi ● Research-Exchange of opinion
introduction, brokerage, abusing marriage 
contracts, organizing tours, child adoption, 
and abduction for kidnapping purposes.
However, this law also stipulates 
acts that promote traffi cking in persons 
(Article 5) such as provision of housing 
and accommodation; provide fake 
documents; advertising and printing 
materials in service of human traffi cking; 
and it is worth noting that the behavior 
“intentionally benefi ts fi nancially or 
otherwise benefi ts from a person’s labor 
or services in a situation such as slavery, 
forced or slave labor, or labor exploitation 
or that service”
In Article 6, stipulates that traffi cking 
acts are considered serious when 
traffi cking in children; organized crime or 
with 3 or more victims; The off enders are 
parents, siblings, and offi cials.
Article 7 provides for victim 
protection and victim information 
confi dentiality.
Article 10 stipulates specifi c 
penalties: human traffi cking of 
imprisonment of 20 years, a fi ne of 
1-2 million pesos; promoting acts of 
imprisonment of 15 years and a fi ne of 
between fi ve hundred thousand and one 
million pesos; serious human traffi cking 
off enses will result in life imprisonment 
and a fi ne of 2-5 million pesos; violations 
of information security victims are subject 
to a fi ne of up to 6 years and a fi ne of 
between fi ve hundred thousand and one 
million pesos. Violation of Article 6 of 
penalties can result in life imprisonment, 
a fi ne of from 2 to 5 million pesos. 
Violating article 7 of penalties of up to 6 
years’ imprisonment, a fi ne of from 500 
thousand to 1 million pesos.
In addition, the law of the Philippines 
also specifi es the responsibilities of 
legal entities of associations, companies, 
clubs or any legal entity that violates, 
the company owner, the manager, must 
also be punished and stripped permanent 
business license. Or offi cials who do not 
comply with the provisions of the law will 
be fi red and end all benefi ts.
In particular, Article 11 states that 
if a victim is used as a victim of sex 
traffi cking, he / she will be fi ned 6 months 
of public labor and 50,000 pesos for the 
fi rst off ense. Second off enses or more will 
be subject to 1-year imprisonment and 
100,000 pesos.
In 2012, by law No. 10364, the 
Philippine government amended and 
supplemented a number of articles in the 
law against human traffi cking in 2003, but 
the core issues mentioned above were not 
changed.
The Act also allows the Philippines 
to set up an inter-agency committee to 
combat traffi cking, chaired by the Minister 
of Justice and the Minister of Welfare 
and Social Development, responsible for 
coordinating with all ministries. Other 
government departments to implement 
the task of preventing and combating 
traffi cking in persons, setting up 
programs, developing laws, supervising, 
coordinating activities, educating, 
addressing problems and implementing 
chapters. reintegration process for victims. 
In addition, the Philippines has set up 
task forces to prevent and combat human 
traffi cking in places at high risk of human 
traffi cking activities such as harbors, 
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airports and border areas, and operate the 
Trans Crime Center. The nation is a match 
for receiving news, storing information 
and coordinating activities on preventing 
and combating transnational crime.
In particular, the Philippine anti-
traffi cking law places great emphasis 
on protecting victims to assist victims 
in reintegrating the community through 
the establishment of trust funds from 
the proceeds of the fi ght against human 
traffi cking and the funds were donated 
by individuals to focus on community 
reintegration for victims, vocational 
training as well as counseling and health 
checks for victims. Licensing foreign 
organizations to participate in community 
reintegration activities for victims and 
considering victim certifi cates issued 
by these organizations is the basis for 
implementing victim assistance measures.
2. Reference values for Vietnam
After consulting the legal system, 
organizational structure, how to 
organize the operation of the anti-human 
traffi cking force in China, Thailand and 
the Philippines. Diff erences in legal 
regulations and organizational structure 
have shown the complexity and diffi culties 
in international cooperation activities. In 
addition to the diff erences, the study of 
practical experience from these countries 
has brought certain reference values to 
Vietnam in perfecting the legal mechanism 
to prevent and combat human traffi cking 
in the coming time.
Firstly, it is necessary to 
develop a legal system to prevent and 
combat human traffi cking in sync with 
international regulations, which promotes 
the performance of non-governmental 
organizations as well as establish trust 
funds for victims.
In the context of globalization and 
deep integration today, the synchronization 
and compliance with international law is 
the basic foundation in all processes of 
cooperation and is especially important 
in the fi ght against transnational crime in 
which there are crimes of human traffi cking. 
The internalization of conventions and 
protocols to which Vietnam is a signatory is 
not only a principle requirement stipulated 
in the 1969 Vienna Convention to which 
Vietnam is a signatory but also an activity 
in accordance with the law of Vietnam 
(International treaty law 2016). The legal 
system is synchronized with international 
regulations but needs to be in line with the 
current legal system, from criminalizing 
human traffi cking acts to organizational 
structure, operational methods, and public 
activities, international cooperation 
measures, procedures for rescuing, 
verifying, receiving and reintegrating the 
community together with relevant laws 
such as labor law, marriage and family 
law, immigration law. It is necessary to 
establish a mechanism for legal entities 
to be responsible for human traffi cking 
and to gain from it. It is also necessary to 
attach the responsibility of each individual 
and organization with supplying and 
benefi ting from this activity. Vietnam 
needs to research and create funding from 
the confi scation of property due to criminal 
activity that is available to assist victims 
as well as studying the licensing model for 
non-governmental organizations that have 
the right to guardian the rescued victims. 
It is necessary to agree that the age of 
56 Nghiên cứu trao đổi ● Research-Exchange of opinion
children is under 18 years of age to have a 
basis for carrying out the struggle. At the 
same time, the criminal responsibility of 
legal entities related to human traffi cking 
is needed to be considered.
However, in the coming period, 
Vietnamese victims will still be mainly 
traffi cked and brought to China, while 
China has a diff erent legal system that is 
not consistent with the provisions of the 
Protocol as well as the legal provisions. 
In Vietnamese law, it is noteworthy that 
China does not consider the act of handing 
over money to people through marriage 
as a human traffi cking, which greatly 
impedes coordination in the fi ght. It is 
also diffi cult in a short time to improve as 
expected because of internal problems in 
Chinese society itself. Therefore, Vietnam 
has identifi ed a case of human traffi cking, 
but China thinks it is legal. Therefore, 
the functional forces should actively 
implement appropriate measures and 
solutions such as better implementation 
of propaganda to raise public awareness, 
manage subjects as well as enhance 
activities and patrol and control the border 
to step up acts of traffi cking in people 
from inland.
Secondly, it is necessary to study 
and establish specialized forces to fi ght 
transnational crimes including human 
traffi cking crimes.
In order to eff ectively operate the 
Anti-human traffi cking legal mechanism, 
the system needs to be operated smoothly 
from the central to local levels by one 
of the heads of government in order to 
mobilize maximum resources, allocating 
forces and organizations from the 
policy making, plans and programs to 
operation, inspection and supervision, 
from implementing organizations to 
international cooperation. Therefore, in 
order to eff ectively operate the mechanism 
to avoid the dispersion of forces, it is 
necessary to set up a task force in charge of 
combating transnational crimes including 
human traffi cking crimes in order to create 
the forefront of coordinating international 
struggle and cooperation activities.
In order to create a comprehensive 
and eff ective legal mechanism, it is 
impossible not to mention the highly 
qualifi ed and experienced, well-trained, 
specialized offi cials. This training 
needs to be conducted at various levels 
from training in specialized schools, 
training through experience exchange, 
in training to improve skills, training 
through seminars at home and abroad. 
Especially, in the fi ght against organized 
and transnational crimes, the training to 
raise awareness about international law as 
well as related country law, and how skills 
in international relations are especially 
important. On the other hand, due to 
the crime area, the transit area of the 
crime is mainly border areas, islands are 
complicated with mainly ethnic minorities 
with low awareness as well as diffi cult 
economic conditions. Therefore, in order 
to operate eff ectively in this area, offi cials 
in charge of prevention and fi ghting need 
to know the ethnic languages, customs, 
mindset of the people and the skills to 
mobilize and mobilize prestigious people 
and village elders, the village chief and 
the people in the movement of all people 
protect the security and order. These skills 
need to be trained not only with offi cials 
57Nghiên cứu trao đổi ● Research-Exchange of opinion
directly involved in the fi ght against 
human traffi cking, but also in the political 
system, mass organizations focusing on 
the Women’s Union, Youth Union...
Thirdly, the legal mechanism for 
preventing and combating traffi cking 
in persons needs to be operated in 
combination with the target programs on 
socio-economic development, focusing on 
prevention.
Human traffi cking is an act that is 
not only identifi ed as a crime but must also 
be identifi ed and recognized as a social 
problem to be addressed. Crime arises from 
the urgent problems of social life, from 
poverty, from the motivation to escape 
poverty, from the factors of instability and 
inequality that exist in society. Therefore, 
to solve this problem, it must also come 
from society to solve problems arising 
in the heart of society. In addition, to 
improve people’s knowledge, equipping 
awareness, prevention as well as investing 
in specialized forces, it is impossible 
not to come up with and implement 
economic development programs and 
policies, remove sustainably reduce 
hunger and poverty, and prevent unsafe 
migration. Countries should coordinate 
the implementation of models to prevent 
human traffi cking and associated program 
to promote economic development, gender 
equality and to promote public awareness 
education on human traffi cking crimes.
References:
[1]. Đinh Bích Hà dịch (2007), Criminal Code 
of the People’s Republic of China, Nxb Tư 
Pháp, Hà Nội. tr.159 
[2]. National Assembly of the Socialist 
Republic of Vietnam, Law on Prevention and 
Combat of Traffi cking in Persons 2011
[3]. Ministry of Justice (2013), “Regulations 
of the 1999 Penal Code on traffi cking in 
persons, traffi cking, fraudulently exchanging 
or appropriating children - actual situation 
and recommendations for improvement” 
[4]. United Nations (2000), Protocol to 
Prevent, punish and suppress traffi cking in 
persons, especially women and children.
[5].ht tp: / /hrl ibrary.umn.edu/research/
Philippines/RA%209208%20-%20Anti-
Traffi cking%20Law.pdf
[6]. https://www.offi cialgazette.gov.ph/2013/ 
02/06/republic-act-no-10364/
Author address: Peoples Security Academy
Email: doquynh83@gmail.com